Volume 38 — West Virginia Reports

I.— Where there han been no dedication of street, or it he/s become the property of the citizen by adversary ¡possession, injunction to restrain town from opening the street is proper. — 15 W. Va. 394; 9 W.'Va. 215 ; 23 W. Va. 211.

<p>1. CONSTRUCTION OK HTATUTE PLEAIHNK -JURISDICTION ' BAR.</p> <p>Section 2(i, c. 125 of (lie Code reads as follows: "No formal defence shall be required in a plea. It may commence as follows : ‘The defendant says that.’ ” This section applies to jileas to the local jurisdiction as well as to pleas in bar. (j>. 27.)</p> <p>2. Evidence-Motion to Strike Out Evidence — Demurrer to E vid enc n- Pr actio e.</p> <p>After tlie defendant lias given in his evidence ora material part thereof, his motion to strike out ail the-evidence, or jilaintiff’s evidence, on the ground that it is not sufficient to sustain the issue on plaintiff’s part, should not lie granted, but he should be left to his demurrer to the evidence, (-p. 31.)</p> <p>3. Instructions — Keversa l op Judgment.</p> <p>AVhen tlie Court instructs the jury, that, if they believe from the evidence certain hyjiotlietical facts mentioned in the instructions, they must find for the party plaintiff or defendant, as the case may lie, but omits from such statement of facts a material fact, which-being believed from tlie evidence would require a different verdict, such instruction is erroneous and, if excejited to and not cured, is ground for reversal, (ji. 49.)</p> <p>4. Damages — Waiver op Claim — Employer and Employe— Kailroad Company.</p> <p>When an employe on a construction train of a railroad company lias knowledge of any danger connected with his em-jiloyment, which may he avoided by the use of ordinary care, and appreciates the danger to which lie exposes himself, if he continues in such employment after such knowledge without protest or complaint on his partsor promise on the part of such railroad company that such danger shall be removed, he will be held to have assumed the risk of such danger and to have waived all claims for damages in ease of injury, (pp. 47, 49.;</p> <p>5. Oases and instructions involving the doctrine of contributory negligence and the doctrine of assumed risk of injury by continuing in the employment after knowledge of the danger, discussed, (p. 40.)</p>

<p>cites 27 W. Va. 75; 26 Fed. Rep. 515; 9 At. Rep. 829; 23 Fed. Rep. 134; 15 S. E. Rep. 455; Hutch. Grit. 389; 22 W. Va. 742.</p> <p>cited St. v. O’Neill 58 Vt.; 73 N. Y. 52; Benj. Sales §§ 381-399; 11 Am. Rep. 118; 2 Kent. Oomm. 492; 13 Am. Dec. 181; 9 Am. Rep. 205; 12 Am. Rep. 140 ; 23 W. Va. 743; 102 Mass. 70; 96 Pa. St. 449 ; Benj. Sales (1st Ann Ed.) §§ 130, 514 (Bennett’s Ed. § 181); 71 Ala. 368 ; 73 Me. 278; 57 Me. 157 ; 130 Pa. St. 138; 51 Am. Rep. 565 ; 24 Me. 89; 1 Pars. Gout. 525 ; Eng. & Am. Ency. Law 289.</p>

<p>1. Felony — Unlawful Shooting— (,'onst.ruotiox of Statute.</p> <p>Section 9, Chapter 144 of the dodo (see ltd. 1891, p. 897) reads as follows: “If a person maliciously slioot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided, be punished by confinement in the penitentiary not loss than two nor more than ten years. Tf such act be done unlawfully hut not maliciously with the intent aforesaid, the offender shall at the discretion of the court either he confined in the penitentiary not less than one- nor more than live years, or be confined in jail not exceeding twelve months and fined not exceeding five hundred dollars.” This section provides for tw<r offences, botli felonies, which must bo so charged in the indictment and tried as such on the trial: (1) Malicious shooting, etc., with intent to maim, disfigure, disable or kill, which having the essential element of malice corresponds to murder; (2) unlawful but not malicious shooting, ate,, with the intent aforesaid but wanting the element of malice, corresponding to man- • slaughter.</p> <p>2. Felony — -Unlawful Shooting.</p> <p>The discretion given the court to ascertain and fix in the second class a less degree of punishment does not reduce the grade of the crime.</p> <p>H. FeloNY — Unlawful Shooting — EvxdeNUE.</p> <p>An ex p«rfemap or diagram, made by a witness, and shown to be correct, may be given in evidence for the consideration of the jury, notas independent evidence, hut to be considered by them in connection with either evidence, so as to enable them to understand and apply it.</p> <p>4. Bill op Exceptions — Objection—Evidence.</p> <p>To make available in the appellate court an objection taken dur* ing- the trial to the admission of evidence, the point must be made and properly saved by some bill of exceptions. It is not enough merely to note the objection and exception in the certificate of evidence.</p> <p>ó. Identification — Evidence.</p> <p>A witness, who testifies that he knows the person in question, may be asked his belief as to the identity of such a person. It is not a case of “expert testimony,” but depends upon the observation and knowledge of the particular witness in the given case, to go to the jury for what it is worth, no matter what his science, skill or experience may be in the matter of identifying persons.</p>

I. — The admissibility of a set-off is governed by the law of the forum.- — -38 Vt. 500; 1 Dan. Neg. Inst. 738. Held: by maker against assignor may be asserted in Virginia against assignee of an overdue negotiable note — r-6 Or. 203; 5 Munf. 388; 18 W. Va. 212.

<p>1. County-Seat-Re-looation — County Court — Kntry on Reo-orx> Book.</p> <p>Under .section Id, e. 39, Code 1891, when an election upon the. re-location of a county-seat has boon held, and the County Court has ascertained and declared its result and entered upon its record-book the fact, that three fifths of the votes cast were for relocation at a particular place, that place becomes by operation of law from the date of such declaration the. county-seat of the county.</p> <p>2. County Court — 2ÑTotiok—Sueciau (Session.</p> <p>A special session of a county court can be hold legally only after a notice of the time of the session, and notice of thepurposes for which it is to bo held have been posted by the clerk at the front door of the court-house at least two days before the session.</p> <p>3. County Court — Notice—Special Hisssion. '</p> <p>To give such special session jurisdiction in any matter, it must appear upon its record-book that such notice was so posted, and also it must appear from such entry in said record-book what were the particular purposes for which the special session was held, as stated and specified in such notice.</p> <p>4. County Court — Xotioe—(Special (Session.</p> <p>If syeli entry as is above described is not entered in such record-book of such special session, everything, which may be done at the special session, must be held to be an absolute nullity.</p> <p>d. County Seat — Re-Locjation.</p> <p>Citizens and taxpayers of a county have such an interest in the matter of the re-location of a county-seat, that they may interpose in proceedings in such matter and maintain appropriate legal process touching it.</p>

<p>• 1, Tax-Bales— Redemption.</p> <p>A person seeking to redeem land sold for taxes should make a legal tender of the proper amount of actual, lawful money; but that will lie excused if the purchaser place his refusal, not upon the non-tender of actual money, or because the amount ishot the proper amount, but on the distinct ground that the party offering to redeem has no authority or right to do so.</p> <p>2. Tax-Sales — Redemption—ConsteucttoN ok Statutes.</p> <p>Statutes allowing redemption of lands sold for taxes must be liberally construed in favor of persons entitled to redeem.</p>

<p>cited 91 U. S. 618; 1 Greenl. Ev. § 82; Id. § 87; Steph. Ev. 116, 117; 31 Eed. Hep. 313; 29 Pac. Rep. 466; 16 S. E. Rep. 638; 35 W. Ya. 258; Code, c. 100, s. 18; Beach Corp. §§ 56, 57; 121 111. 530; 130 U. S. 396; 22 W. Ya. 600.</p> <p>cited 2 Greenl. Ev. § 637; 1 Greenl. Ev. § 35; 1 Bar. Law Pr. 211; 1 W. Ya. 57; 3 W. Ya. 172; 8 Cal. 615; 12 Tex. 130; 6 Tex. 497; 53 Me. 544; 15 R. J. L. 412; 21 Barb. 333.</p>

<p>1. Evidencie.</p> <p>hi order to exclude evidence of oral agreement on tlie ground that the parties later entered into a written contract, the oral agreement must relate to the same agreement embodied in tlie written contract.</p> <p>2. LANDLORD AND TENANT.</p> <p>Where a lease provides that for non-payment of rent the lease shall bo forfeited and surrendered on ten days’ notice, and the lessor demands rent in arrear, and the lessee does not demand notice and pay, but agrees to end the term and surrender his lease, though there was no other notice, the tenancy is thereby ended, and the lessor becomes entitled to possession.</p>

In a suit, to set. aside a deed as fraudulent as to the plaintiff’s claim it is not necessary or proper to make the creditors of the fraudulent grantor parties; — nor is it necessary or proper in such, a case to make the the joint judgment-debtors of the fraudulent grantor parties; — nor is it necessary in such a suit to allege in the bill the issuance, of and return upon an execution issued upon such judgment;— nor is it proper in such a suit to enquire whether the rents…

<p>1. Justice on the Peace — Jury-—Venere Fact as.</p> <p>When either party demands a jury, it is error for the justice without consent of parties to issue a venire facias for such jury, before the summons to commence the suit has been served and returned, and the time fixed for the appearance of defendant has arrived.</p> <p>2. Justice oe the Peace — Jury—Venire Facias — Waiver.</p> <p>But where the defendant- appears and has the case continued, and the jury thus summoned is adjourned to the time thus set for trial, he will be hold to have waived such irregularity in the writ of venire facias, it appearing that lie was not injured thereby.</p>

<p>cited Acts 1872-3 e. 194, s. 25, 26; 35 W. Ya. 605; Const. Art. X, sec. 8; 114 TL 8. 132; 7 W. Ya. 501.</p> <p>cited Acts 1872-3, c. 114, s. 57; Code, c. 39, s. 43 ; Code, c. 38, s. 29 ; Acts 1872-3, c. 114, s. 28 ; Code, e. 43, s. 25, 26; Const. Art. 8, sec. 24, 28 ; 25 W. Ya. 46; 28 W. Ya. 284; 17 S. E. Rep. 379; Code, c. 43, s. 41; Cool. Const. Dim. (5th. Ed.) 206; Id. 201; Const. Art. S, sec. 81; Cool. Const. Dim. 70; 71, 77; 98 ü. S. 807; 47 Col. 488; Dil. Mun. Corp. § 406 ; 27 Barb. 264; 18 Ohio St. 563; 33 Pa. St. 210 ; 14 N. Y. 361; 28 Barb. 65.</p>

<p>Infants — Guardian ad Litom.</p> <p>A commissioner of school-lands under chapter 105 of the Code (Ed. 1887) fileshis petition in the Circuit Court for the sale of certain lands as forfeited, and in pursuance of the statute mentions an infant as one of the claimants of said tracts of land, who appears by his guardian and next friend and excepts to the proceeding, on the ground among others that he should have had a guardian ad litem assigned to him. Held error to enter any decree thereafter in the suit affecting- his interest without having first appointed a guardian ad lifem to such infant.</p>

<p>1. Injunction — Taxes.</p> <p>Injunction is the proper remedy to prevent municipal officers from collecting taxes assessed against persons or property which the municipality has no legal right to tax. Christie v. Malden, 23 W. Ya. 667.</p> <p>2. Assessment.</p> <p>Under the assessment laws of this state property and the valuation thereof, as ascertained for municipal assessments, in allmu-nicipalities of less population than ten thousand inhabitants should be identical with the property and values thereof ascertained for state, county and district assessments.</p>

I. — Statutes of limitation do not embrace the state unless ex-' presshj designated.- — -6 Pet. 666; 13 Wall 92; Coni. 18 Wall. 57; 28 W. Va. 304; 2 W. Va. 441.

<p>1. Execution'.</p> <p>An execution issued upon a judgment alter two years from its rendition without an order of court allowing its issuance is properly quashed.</p> <p>2. Balance of syllabus same as in State, v. Minen, xupra p. (18 S.</p> <p>E. Rep. 470).</p>

<p>cited. 18 W. Ya. 559 ; 6 Rand. 22; 83 Am. Dec. 96 ; 35 Am. Rep. 110 ; 36 W. Ya. —; 35 W. Ya. 333; 16 S. E. Rep. 817; 9 W. Ya. 252; 16 W. Ya. 321; 17 W. Ya. 212;'l8 W. Ya. 583; 21 W. Ya. 230 ; 28 W. Ya. 737 ; 30 W. Ya. 236 ; 27 Graft. 935.</p>

<p>cited 13 W. Va. 709; 9 Gratt. 154; 2 Add. Cont. §§ 871, 881; 8 Wall. 77, 84; 8 W. Va. 474; 15 S. E. Rep. 149.</p> <p>cited Sedg. Dam. (6th Ed.) 251, 415, 416; 2 Dan. 610; 44 Pa. St. 99; 25 W. Va. 65. '</p>

Statement of the case by DjeNT, Judge: On the 21st day of April, 1890. the Barnes Safe & Lock Oompauy entered into a written contract of agency with the Globe Contract Company as follows, to wit: “Articles of agreement between the Barnes Safe & Lock Company, of Pittsburgh, Pa., composed of Thomas Barnes of the first part, and the Globe Contract Company of Wheeling, W. Va., a corporation of the State of West Virginia, of the second part, witnesseth, that, for and in…

<p>cited 11 W. Ya. 584; 20 W. Va. 251; 20 Graft. 147 ; 14 W. Ya. 100-118.</p> <p>cited 36 W. Ya. 563.</p>

<p>1. Municipal Corporations — Damages.</p> <p>A municipal corporation is absolutely liable for injuries caused by its failure to keep in repair the streets, alleys, sidewalks, roads and bridges. Chapman v. Milton, 31 W. Va. 385 (7 S. E. Eep, 22).</p> <p>2. Municipal Corporations — Damages.</p> <p>A municipal corporation is liable for injuries sustained by the negligent management of its corporate property, to the same extent that private individuals are liable for the same character of negligence.</p> <p>3. Municipal Corporations — Damages.</p> <p>A municipal corporation is liable for injuries caused by its negligence in the discharge of or failure to discharge such duties, as are purely ministerial, not governmental or discretionary</p> <p>4. Municipal Corporations — Damages.</p> <p>A municipal corporation is not liable for injuries caused by the negligence of its agents'and officers in the discharge of or omission to discharge duties, which are purely governmental or discretionary.</p> <p>5.Municipal Corporations — Damages—Burden op Proof.</p> <p>When the injury sued for is alleged to have been caused by the defendant’s negligent use of its corporate property, or in the discharge or omission to discharge of a ministerial duty, the burden of proving negligence is on the plaintiff; and if the jury by its determination finds, that the facts are not sufficient to sustain the charge of negligence, the court can not disturb the verdict, even though it be of a different opinion. To do so would be a denial of the right of trial by jury guaranteed by the constitution of this state.</p>

I. — As to situs for taxation, see — Cook on Stock and Stock-i holders, sec. 564; Cool. Tax. 16, 274; 16 Pick. 572; 30 K J.13; 23H. J.481; 23 IST. J. 532; 49 Penn. St. 526. II. — As to limitations of municipal powers of taxation, see■ — -11 W. Ya. 501; 28 W. Ya. 698 ; 15 S. E. Rep. 78; Secs. 18 and 20, chap. 18, Acts 1865; Secs. 28 and 31, chap. 47, Code 1868 ; Sec. 101, chap. 54, Acts 1875. cited Charter of town, oh. 80, Acts 1865; Charter of bank, Acts of 1875, page 369.

<p>1. SüRetibs — Contribution—Sale —Separate Estate — Parties —Pleading.</p> <p>Where a suit in equity is brought by one or more sureties against their cosureties to compel contribution, and a tract of land is sought to be sold as the property of one of said cosureties, which is claimed by the wife of said cosurety as having been purchased and paid for by her, although the title remains in her vendor, it is error to decree a sale of said tract of land so claimed by said wife without making said vendor a party to the suit.</p> <p>2. Sureties — Contribution—Sale—Separate Estate — Parties —Pleading.</p> <p>In a suit of this character, when the bill alleges the insolvency of a cosurety, who is dead, and such allegation is not denied hut admitted, the heirs at law of such dead cosurety are not necessary parties to the suit.</p> <p>3. Sureties — CONTRIBUTION—Sale—Separate Estate — Parties —Pleading.</p> <p>Where mention of the land sought to be subjected as the property of said cosurety as fraudulently conveyed to his wife gives no description or clue of identity, except the naming of the county in which it lies, and there is nothing in the proceedings that renders it more certain, it is too indefinite to authorize any legal proceeding to subject the same.</p>

<p>1. Bill in Chancery — PlbadiNG.</p> <p>A bill in equity may in form, as to parties, follow the chancery practice used before the enactment of Section 37, c. 125, Code, or the form prescribed by that section, but it must follow one or the other.</p> <p>2. Bill in Chancery — Pleading—Parties.</p> <p>If the statutory form be used, persons named in the caption as plaintiff and defendant are such merely because there named as such; but, if the statutory form be not used, the bill must formally or in some plain, distinct way make parties plaintiff and defendant; otherwise, it is fatally defective, and a decree upon it would be null.</p> <p>3. Bill in Chancery — Pleading—Parties—Appeal.</p> <p>Such a defect in the bill, for want of parties to it, can be taken advantage of, without demurrer, on the hearing or on appeal, unless expressly waived in the lower court.</p> <p>4. Decree — Appeal.</p> <p>A decree, though null, may be reversed on appeal.</p> <p>5. Demurrer — Pleading.</p> <p>A demurrer need not specify causes of demurrer. The general form prescribed by section 28, c. 125, Code, is sufficient.</p> <p>6. Demurrer — Pleading.</p> <p>A demurrer may be incorporated in the answer.</p> <p>7. Demurrer — Pleading.</p> <p>Special demurrers are abolished by section 28, c. 125, Code.</p> <p>8. Dejiuiirer — Pleading.</p> <p>Section 29, c. 125, Code, does not require causes of demurrer to be specified in a written demurrer ; but if none are assigned, it gives court right to ask an assignment of causes ore tenus or written, or, on overruling the demurrer, to state that none were assigned.</p>

<p>l. Taxes — CONSTRUCTION of Statutes — Assessment.</p> <p>Section 4, c. 35, Acts 1891, providing for the re-assessment of lands, where it mentions coal privileges or interests held by a party or parties or any company or association exclusive of the surface, and providing- for a separate assessmeut of the surface and coal privilege or. interest, in using the word “held” meant and intended “owned” by such party or parties Or any company or association.</p> <p>2. Taxes — Construction of Statutes — Assessment.</p> <p>"Where either the surface or the coal or mineral underlying the same is leased to a party, it is the duty of the commissioner in reassessing the land under chapter 36 of the Acts of 1891, to assess such land and coal to the owner thereof.</p> <p>3. Taxes — Construction of Statutes — Assessment.</p> <p>Where a stratum of coal underlies a tract of land, and the owner thereof sells and conveys the coal underlying his land, it is the duty of the commissioner in reassessing said land under chapter 36 of the Acts of 1891, to assess the coal separately from the surface, charging the surface and coal to their respective owners.</p>

I. — A servant can not recover for an injury suffered in the course of his employment from a, defect in the machinery or appliances used by the master, unless the master knew, or ought to have known, of the defect, and the servant was ignorant of such defect, or had, not equal means of knowledge.” — 83 W. Ya. 135 ; 31 W. Ya. 142; 24 W. Ya. 37; 29 Conn. 548 ; 41 Barb. 366; 26 Barb. 39; 24 H. Y. 10 ; 64 H. Y. 5; 110 Mass. 23; 137 Mass. 243; 61 Ill. 162; 68 Ill. 545; 61 Mo.…

I. — On insufficiency 'of eddence to warrant the judgment of the justice. — 25 W. Va. p. 571, 6th p’t; 35 W. Va. p.438. IT. — On power of the Circuit Court to review the action of the Justice. — 3 Am. & Eng. Ency. Law-, 60-62; 20 W. Va. 89, 103, 105, 107. cited Code c. 110, s._ 2; Const. D. S. Art. III. s. 2; Const. & Manual U. S. Senate 55 (Ed. 1890); Const. W. Va. Art. VIII, s. 28; 30 W. Va. 327 ; 28 W. Va. 815, 119 ; 35 W. Va. 333 ; 2 Wait’s Act. & Def. 137,141.

<p>1. Tanks — Municipal Cokpokationh —Injunction.</p> <p>rf a municipal eoriioration in taxing property ads ultra vires by taxing- property which it has no right to tax, beyond the limit iixed by the organic law conferring' the power to tax, a court of equity will on a bill filed by the owner of the property so illegally or excessively taxed enjoin the collection of the, taxes illegally assessed.</p> <p>2. Tanks- -Municipal Cokpokations — Injunction.</p> <p>A court of equity has jurisdiction in such a case to remove a cloud from the title of real estate where the property assessed is partly of that character. It also has jurisdiction to restraiu the collection of such taxes so illegitimately assessed because the action of the municipal corporation was ultra vires.</p>

<p>New Trial — Remarks or Judge.</p> <p>Where the trial-judge during the progress of the trial in overruling objections to the admission of testimony expresses an opinion as to the material facts in issue in the presence and hearing of the jury so prejudicial, that the error can not be cured otherwise 1hau by granting the party injured thereby a new' trial, in case the verdict is against him, notwithstanding such opinion was not objected to at the time it was so expressed, it may be taken advantage of on the hearing of a motion for a new trial and if the motion is overruled, and proper exceptions taken, the judgment will be reversed, and a new trial awarded for such error alone.</p>

<p>cited Bisli. Const. Law §§ 438, 457, 458; Bisli. Stat. Or. § 1030 ; 2 W. Ya. 517; 11 Wheat. 258; 1 Band. 98; 32 Ala. < 30; 11 Ilumph. 1 ; 26 Yt. 184; 1 Par. Const. 458; 1 Taunt. 136 ; Code, c. 32, s. 2.</p> <p>cited 4 Min. Inst. 576; 4 Rob. Pr. 497, 498 ; 23 IV. Ya. 619, 632; 18 W. Ya. 630; 5 W. Ya. 190 ; 9 Leigh 532.</p>

<p>24 W. Va. 809 ; 16 S. E. Rep. 514.</p> <p>cited 36 W. Vh. 179; Id. 704; 1(5 S. E. Hep. 519 ; Id. 514; 17 S. E. 'Rep. 307.</p>

<p>cited 4 W. Ya. 56; 23 W. Ya. 639; Code, o. 74, s. 1; Fonb. Eq. (3d. Ed) 277.</p> <p>cited 24 W. Ya. 405; 29 W. Ya. 441; 31 W. Va. 137.</p>

<p>cited Code, c. 39, s. 34; 43 N. W. Rep. 690.</p> <p>cited Code, c. 39, s. 37, 38, 39, 34.</p> <p>cited 30 W. Va. 359, point 7 of Syll.; 36 W. Va. 681; Story Eq. Jur. §§ 317, 639, 849, 826 d seq.; 1 I3art. Ch’y Trac. 282; 9 Gratt. 398, 404; Code, e. 39, s. 37, 42; Id. c."99, s. 7; Id. e. 41, s. 56; 20 W. Va. 351; 29 W. Va. 806; 33 W. Va. 556; Code, c. 104, s. 19; 2 Tnelcor, side p. 156; 16 8. E. Rep. No. 10; 1 Dan. Neg. Inst. § 427; 19 Wall. 468; 19 Wall. 485; 103 U. 8. 74; 103 IT. S. 559.</p>

<p>cited 16 W. Va. 556; 7 Pickering, 181 (19 Am. Dec. 268); 19 Am. Dec. 272, note; 112 Maas. 209, 308; 4 Gray, 292; 16 Gray, 193; 9 Allen, 355; 36 Me. 92; 169 Mass. 192; 27 W. Va. 244.</p>

I. — Negligence is a question of fact for the jarg. — 17 W. Va. 214; 27 W. Va. 168; Riley v. llailmag Co. IE. — Master not justified in exposing the. servant to ⅜⅛, §c. — ■ 27 W. Va. 159. ' III. — Rales made bn the defendiuits should be conformed to. — 28 W. Va. 617. IV. — The master should make proper inspection and tests. — 28 W. Va. 617; Code W. Va. 1891, App. p. 994, s. 10. Y. — Master must not lull servant into a sense of security. — 81 'W. Va. 152; 30 W. Va. 798.

<p>1. Minors — In Loco Parentis -Waijeh---Services.</p> <p>Where a minor lives with his únelo as a member of his family, the unde furnishing him with food, raimant and shelter, and the minor rendering to his unde his services without, any contract, or mutual understanding as to compensation for support or wages to be paid, such minor can not recover from the uncle nor from his personal representative the value of the services thus rendered, though the value of such services may have been greater than the value of such support.</p> <p>2. MINORS — In Loco Faeentis — Wages—Services.</p> <p>But the uncle may give or release to such minor the right to his wages earned elsewhere, if it affirmatively appear or may fairly ' be inferred from the nature and circumstances of the case, that such was the understanding of the parties —a question of fact to be-determined by the jury subject to the proper control of the court.</p> <p>3. ¿lease in which these two principles are applied.</p>

I.— Defendants should, have sought relief by fling a cross-bill, or an answer in the nature of a cross-bill. — Code, c. 125, s. 35, 57; 14 W. Va. 688; 23 W. Va. 760; 6 W. Va. 168; 10 W. Va. 35; 11 W. Va. 3S7; 17 VV. Va. 901. He must -pray for the relief in the answer. — 19 W. Va. 168; Id. 201; 21 W. Va. 234. No special replication allowed unless there is prayer for affirmative relief . — 28 W. Va. 113; 33 W. Va. 600.

I. — Chancery has no jurisdiction of this case. — 7 W. Ya. 228; 20 W. Ya. 175. ' II. — The claim, of the plaintiff is without equity — 1 Lev. 111. III. — The lease was procured by false and fraudulent misrepresentations. — 67 Am. Dec. 675; 77 Am. Dec. 687; 19 W. Ya. 438; 32 Gratt. 312; 77 Va. 540; 78 Ya. 65; 83 Ya. 397; 5 Am. St. Rep. 285 n. Plaintiff can not claim to be. an innocent purchaser. — 62 Am. Dec. 402; 65 Am. Dec. 314; 15 Or. 385 ; 32 Am. Dec. 740; 55 Am.

<p>1. tí ARB.</p> <p>Defendant bought a harvesting machine called a “binder” upon the condition that, if it did not work to liis satisfaction, he might return it. Held, that liis'right to reject was absolute; and his reasons could not be investigated.</p> <p>2. Instructions — Rbvmbsar or’ Juimmknt.</p> <p>A11 erroneous instruction on a material point is presumed to be to the prejudice of the party appealing, against whom itis given, and will cause reversal, unless it clearly appears from thé record that it was harmless.</p>

cited' 51 Am. Dec. 51 and note; 7 Allen, 460; 115 Mass. 27; 30 Me. 459; 32 Id. 418; 57. Id. 29; 5 Nat. Bank Reg. 353; 117 U. S. 559. I. — When judgment non obstante veredicto mag be entered: — 1 Black Jdgmts. § 16. II.- — -Scire facias not a new suit, and error to enter a new judgment.. — Black -Jdgmts. §§ 486, 497. LI I. — -Power of Court to modify or to ret anide judgments. — ■ Black Jdgmts. §§ 153, 297.

<p>cited 7 Johns. 468; Code, c. 150, s. 180</p> <p>cited 15 S. E. Rep. 173; 21 W. Ya. 796; 1 Black Jdgmts.; 17 W. Ya. 540; 23 W. Ya. 1; 27 W. Ya. 540; 24 W. Ya. 181.</p>

<p>Taxes — County Court — Whit of Krror.</p> <p>A county Court is nota party to an appeal taken under section 7, o.36, Acts 1891, for re-assessment of lands bya land owner, from the decision of a County Court refusing to reduce the valuation of iiis land made by a commissioner under said act, and can not maintain a writ of error from ibis Court to the decision of a Circuit Court upon such appeal.</p> <p>2. Taxes.</p> <p>Power of taxation, fts character discussed</p> <p>3. Taxes. ,</p> <p>Assessment of taxes and valuation. The, character of the act discussed.</p> <p>4. Taxes — County Court — Circuit Court — Constitutional .Law.</p> <p>Is the jurisdiction conferred upon Circuit Courts by section 7, e. 10(3, Acts 1891, to entertain an appeal from a decision of a County Court touching valuation of land1 by a .commissioner to reassess lands, valid, under the constitution? Is the action of the Circuit Court on such appeal judicial in nature V</p> <p>5. Taxes — Writ oe Error — Supreme Court op Appeals.</p> <p>Can the Supreme Court of Appeals entertain a writ of error to the decision of a Circuit Court on such appeal?</p>

<p>1. CORPORATIONS — DIRECTOR,S.</p> <p>A corporation receives its certificate of incorporation and organizes under the act of February 28, 1877, called the “Boom Law.” See Code (Ed. 1801) p. 1004. The board of directors must be composed of those who are stockholders, but they are not required to bo residents of this state.</p> <p>2. Corporations —Directors—Fraudulent Conveyance.</p> <p>A corporation is unable to pay its debts or further carry on the business for which it was incorporated. Two of the board of directors compose a firm, which is a creditor at large of the corporation for a relatively large amount. The board of directors ordered the conveyance of all its property, real and personal, to be made to a trustee to secure and pay its debts, giving a preference to the claim of the firm composed of the two directors. These two directors, in violation of the statute (section 52, o. 53, (lode) were present at the board while the subject of ordering the. conveyance giving their claims such preference was being considered, but they did not vote on that question. Held, the conveyance giving such preference made by virtue and in pursuance of such order is prima fa cíe fraudulent and void as to the preference thus given, when assailed by the creditors, and will be so declared, unless it be shown on behalf of such preferred creditor by the most clear and convincing- proof that such preference was not only free from fraud, but was in itself in the circumstances both fair and reasonable.</p> <p>3. Vendor's Lien — Subrogation.</p> <p>Those who sold and conveyed land to the corporation reserved on the face of the conveyance a lion on the land for the payment of the balance of the purchase-money. A third person at the instance of the corporation advanced the money to pay off and lift such purchase-money notes with the understanding that he was to hold them as additional security for the money thus loaned • and advanced. Ifehl, such third person so paying and lifting from the vendors the purchase-money notes is entitled, as far as may be necessary, to be subrogated to such vendors’ liens.</p> <p>4. Ass r UN JIM NT — (1H EC K.</p> <p>A check operates as an equitable assignmentpro tanto from the time it is drawn and delivered, as between the drawer and the payee or holder.</p> <p>5. ASSIGNMENT — CHECK.</p> <p>A general assignment for the benefit of creditors does not defeat tlie cheek-holder, although the check' be not presented to the bank for payment till after such assignment.</p> <p>6. Fkaudulent Conveyance.</p> <p>A case in which it is held that creditors assailing a deed of trust as illegal and fraudulent, and succeeding as to one, and only one, of the claims thereby secured, are not entitled to occupy, in the order of payment out of the trust fund, which is treated as a whole, the place thus made vacant, or to displace or in any manner lessen or impair the claims of the bona fide, creditors, who are. without fault and therefore retain the place given them in the trust-deed.</p>

<p>cited : Code, c. 45, s. 45; Read. v. Atlantic City, 49 N. J. L.; 31 Md. 375 ; Code, c. 45, s. 34, 38; 35 W. Ya. 005; 42 N. W. Rep. 774; Id. 767; 52 Fed. Rep. 382.</p> <p>cited : Code, c. 45, s. 45; 35 W. Ya. 605 ; 1 Dill. Mun. Corp. 4$ 130 et seq.; 2 High Inj. § 1239 ; Code, c. 45, s. 35.</p>

<p>cited: 27 W. Ya. 187; 2 Watts & S. 190 ; 104 Pa. St. 399; 30 W. Ya. 43; Code, c. 53, s. 59; 85 Pa. St. 25; Const, ü. S. Art. IY, sec. 1; 7 Cra. 481, 548; 2 Bl. Judgments § 856 et seq.; 28 W. Ya. 167; 74 Pa. 300; 43 Pa. 278; 3 Watts & S. 28; 2 Sm. Lead. Oas. (6th Ed.) 821; 7 Pa. 279; 11 Pa, 220; 10 Md. 268; 32 W. Ya. 773; 49 Pa. St. 118; 25 Pa. St. 337; 29 Pa. St. 534; 134 Pa. St. 884; 23 Am. & Eng. Corp. Cas. 612; 8 Kan. 101; 8 W. N. C. 367; 2 Heisk. 354; 6 So. Bep. 907; 11 S. & R. 238; 4 W. & S. 38 ; 5 W. & S. 264; 32 Pa. St. 78; 148 Pa, St. 15; 2 Watts 493; 4 Watts 274; 71 Pa. St. 85 ; 5 S. & R. 211; 2 Whar. 9 ; 54 Pa. St. 120; 4 W. & S. 237; 10 Harris 74; 7 S. & R. 269 ; Brews. ,Pr. Pa. 204; 27 Pa. St. 479; 52 N. J. L. 10 ; 21 W. Ya. 119; 18 Atl. Rep. 1095; 52 N. J. L. 10; 1 Litt. 118.</p> <p>I. — On the point that an officer of a corporation can not be per - son-ally interested in any transaction in which his company-is concerned and that any profits which he may realize in any such case he holds as trustee for the stockholders. — Taj7. Priv. Corp. §§ 629, 630 ; 1 Mor. Law Priv. Corp. §§ 516-520 ; 25 W. Va. 789; 30 W. Ya. 443; 59 Me. 277; 112 Mass. 195; 86 Mo. 475; 89 Mo. 445; 16 W. Va. 32,95; 25 IV. Ya. 56.</p> <p>II. — On the point that a judgment can not be revived against a dissolved corporation. — Mo. Priv. Corp. § 1031; 1 Rob. (Va.) 499; 2 Wat. Láw Corp. Yol. 2 § 434; Tay. Priv. Corp. § 435-437; 85 Pa. St. 25.</p> <p>III. — On the -point that an officer of a corporation can not recover for services rendered, his company, unless he proves an express agreement providing therefor. — 49 Pa, St, 118; 134 Pa. St. 353; Tay. Priv. Corp.'§§ 646-647; Code, 499; 29 Pa. St. 536; Beach Priv. Corp. § 208; 19 Am. &Eng. Corp. Gas. 165 ; S. C. 14 On. Rep. 211.</p> <p>IY. — And especially that these claimants can not recover under the evidence in this case. — 14 Am. & Eng. Corp. Cas. 73; Tay. Priv. Corp (2d Ed.) § 628; 19 Mo. App. Rep. 353.</p>

<p>m § ^ • ⅝ CO CO O s. 2; Sliep. touch. *311 d 320 et set/.; 1 Tuck Comm. 454; 2 Min. Inst. (3d Ed.) 794; 4 Min. lust. (3d Ed.) 48; 75 Va. 604; 31 W. Va, 82, p’t 2 Syll.; 2 Pars. Oont.*493, *504; 1 Am. & Eng. Enoy. L. 854; 25 W. Va. 263; Am. Dig. (1889) p. 2927 par. 319 ; 18 W. Va. 195. k. ^ « CO r3 hh -3 tO CO ^ c o o }> ^ CO CO CO cq M CO ^ co H-l C5 m <d -.7 ^ • LO LO cc <3 CO CO o <j to CO <4 •"N tH CO o CD > Pi</p> <p>cited 13 Gratt. 436; 24 W. Va. 737; 21 Gratt. 247;-75 Va. 609 ; 33 Gratt. 195 ; 16 W. Va. 725 ; 32 W. Va. 276 ; 23 W. Va. 656 ; 33 W. Va. 653; Id. 156; 10 W. Va. 142; 16 W. Va. 77; 23 W. Va. 704; 13 W. Va. 572; 19 W. Va. 367.</p> <p>cited Code, c. 74, s. 5; Code, c. 76; Code, c. 133, s. 8; 26 W. Va. 686; 32 W. Va. 272; 22 W. Va. 292.</p>

<p>1. Bill in ChaNCery — Pleading.</p> <p>The bill should- state the plaintiff’s case with reasonable certainty--that is, the right he claims, the injury complained of, and tlio relief he seeks with the facts to justify it — with sucdi accuracy and clearness, and with such detail of the essential circumstances of time, place, manner etc., as will so make his case as to inform the defendant of what he is called upon to meet; stating, not conclusions of law but the facts out of which arises his right to some specific relief.</p> <p>2. BILL IN CHANCERY — PLEADING-.</p> <p>The bill may be framed with a double aspect and ask relief in the alternative, but the states of fact upon which such relief is prayed must not be inconsistent.</p> <p>,'i. limn in Chancery — Pleading.</p> <p>The bill must not be multifarious — that is, two distinct grounds of equitable relief even between t.he same parties are not to be joined in one bill.</p> <p>4. Bill in Chancery — Pleading—Parties.</p> <p>Persons are not improper defendants who areso connected with the case made as to be directly interested in obtaining or resisting the specific; relief asked in the bill or given in the decree, such as claimants by written executory contract of part of the personal property mentioned in the deed of trust in controversy.</p> <p>5. Bill in Chancery — Pleading--Fraud.</p> <p>Fraud is the judgment of the law upon facts and intents, and the mere general charge of fraud is not sufficient; the bill must allege the specific, acts or language which constitute the fraud, or connect them with some specific act for which the defendant is in law responsible.</p> <p>G. Answers — Rules—Practice.</p> <p>Answers and other pleadings, except in cases of injunction, can only be filed at rules or in court.</p> <p>7. Trusts and Trustees. •</p> <p>When, for any proper cause, a court of equity is called upon to take control of the property conveyed by a deed of trust to secure creditors, it generally goes on and has the trustee, or some one in his place, to administer the trusts under its direction, and with its sanction ; has the claims and priorities of all parties ascertained and fixed before directing a sale, except for some good reason to be specially shown; and does not disburse the proceeds of sale until it can do complete justice to all, according to their respective rights.</p> <p>S. Trusts and Trustees — Title.</p> <p>It is.not necessary to the validity of a deed of trust to secure creditors that it should be executed by them. The deed.passes the legal title as soon as executed by the grantor and the trustee, and can only be avoided by the dissent or disclaimer, express .or implied, of the trust-creditors,</p> <p>9. Trusts axd Trustees-Fraudulent CONVEYANCE — PreeerENCE.</p> <p>Such trustee is a purchaser for valuable consideration, and the statute against fraudulent conveyances applies to no such conveyance made bona fide; but an insolvent debtor, with certain exceptions named, can no longer give priority or preference of payment to one creditor over another. .Roe Code (Ed. 1801) \ 2, c. 74.</p> <p>10. Trusts and Trustees — Fraudulent Conveyance. ■</p> <p>Where such deed is made for the security of various creditors whose claims are distinct, and where part is illegal or fraudulent, and another part is fair and untainted with fraud, and the deed is not fraudulent upon its face, it will not bo held void as to the latter unless they have directly or indirectly had notice of such fraud at the time of the execution of the deed, or in some way participated in the concoction of such fraud.</p> <p>11. Trusts and Trustees — FrauduleNt Conveyance.</p> <p>A creditor of the trust debtor assails the deed of trust as made with the intent to hinder, delay and defraud him in the collection of his debt, and succeeds in his impeachment of o.ne of the preferred claims, but the other trust creditors subsequent in order of preference successfully resist such' charge as to their claims, which are hold to be just and honest. Held, such assailing creditors will not in order of payment be promoted to the place thus made vacant, but must come next in order of payment to the successful bona fide creditors, who will hold the places given them in the deed of trust.</p>

<p>cited Lew. Em. Lorn. § 225 ; 12 Law. Rep. Ann. 609, 615 ; 34 W. Va. 479; 129 N. Y. 576; 88 Ill. 535 ; 70 Ill. 288; 90 Ill. 42; 82 Ill, 208; 68 Ill. 607, 614; 70 Ill. 347; 91 Ill. S 00 ⅜ ^ ^ > rH O rH CO O • ~ CM OO cO t-Tji CD Oü — CO 03 H • co r- 53 CM Ol r- r-T i — ' CD 03 M 25 i>* § O CO S CO ’1 CO Ol 1C 1-1 T—</p> <p>c.ited 16 S. E. Rep. 819; 81 W. Va. 483; 29 W. Va. 765; 27 W. Va. 306 ; 34 W. Va. 232 ; 10 W. Va. 546, Syll. p’t 5 ; Acts (1852) p. 309 ; Code, e. 54, s. 48, 50 par. 6 ; 16 S. E. Rep. 519; 3 Am. R’d & Corp.Rep. 710; 71 Mor 575; 101 N. Y. 98; 62 Tex. 593; 63 Tex. 223; Id. 345; 108 U. 8. 817-; Wood Xnis. ⅜ 864; 13 S. E. Rep. 567 ; 15 S. E. Rep. 788 ; 16 Am. & Eng. L. 987 ; 26 W. Va. 672; 3 Am. R’d <fe Corp. Rep. 251; Id. 268; 24 W. Va. 674; 26 W. Va. 788; 12 W. Va. 116; 32 W. Va. 487. '</p>

I. — Risks assumed. — 27 W. Ya. 285 ; 29.W. Ya. 107. II. — Engineer and brakeman air. fellow serrants. — 109 U. S. 478; McKinney Eel. Serv. § 129, note 5 ; 17 Am. & Eng. R. Cases 501, and note 514; 8 Am. & Eng. R. Cases 183 ; 55 Mich. 57; 55 Tex. 110. III. — Specific charge of negligence must be proven as alleged.— 15 W. Ya. 628. IY. — Expert evidence — TJswd manner of performing an act.— • 91 U. S. 469-470; 23 Am. & Eng. R. Oases 342, and note 346 ; 14 S. E. Rep. 996.

<p>1. Married Women — Separate "Estate.</p> <p>Where a conveyance of real estate is made to a married woman by a person other than her husband, and the purchase-money therefor is paid by the wife partly out of money earned by her by keeping a boarding house with the consent of her husband, he taking no part in said business and furnishing none of the means to carry it on, partly by money realized by her by releasing a contract which she had made witli another party, and partly with money borrowed on her own individual note, she is entitled under the statute to hold the same to her sole and separate use, free from the disposal of her husband, and not liable for his debts.</p> <p>2. Married Women — Separate Kktate.</p> <p>Property purchased by a married woman from a person other than her husband is her separate property, although purchased on credit., and paid for out of profits arising from its use by her, although when purchased by her she had no separate estate.</p>

<p>1 CoXSTITOTIONAL L 1W— MUNICIPAL CORPORATIONS — Ol’PIGERS.</p> <p>Section 13 of chapter 47 of the Code, which requires members of municipal councils to bo freeholders therein, is constitutional and valid, (pp. 488, 407, 499.)</p> <p>2. Certiorari — Practice—Municipal Corporations.</p> <p>Certiorari and not mandamus, is the proper remedy to review the proceedings of a municipal council, under section 23 of chapter 47 of the Code. (pp. 496, 516.)</p>

<p>1. Intoxicating Liquors — Pijoading.</p> <p>On an indictment for a violation of the state revenue law in selling spirituous liquors without a license the plea of guilty may be entered without formally and expressly withdrawing a plea of not guilty theretofore entered.</p> <p>2. Criminal Proceedings — Discretion.</p> <p>In a criminal case the court may permit the jilea of guilty to be withdrawn and another plea to be entered iu its place in the exercise of a sound discretion, if justice and a fair trial on the merits require it; but it must be in time, and the reason for it must he made to appear clearly and distinctly.</p> <p>.‘5. Special Term — 1STotick.</p> <p>A judge of the Circuit Court in pursuance of section 5 of chapter 112 of Code by a warrant directed to the clerk appoints a special term, which warrant the clerk enters in the order-book of the court but fails to post a copy of such warrant at the door of the court-house. Held, Such omission does not in any wise affect the validity of the proceedings of such special term of the court.</p>

<p>1. Damages — CONTRIBUTORY Negligence — Railroad CompaNies.</p> <p>One of the rules of a railroad company reads as follows “They” (the brakemen) “are charged with the management ef the brakes, and the proper display and use of the signals. They must examine and know for themselves that the brakes, ladders, running boards, steps, etc,, which they are to use, are in proper condition, and, if not, put then) so, or report them to the proper parties, and have them put in order before using'.” Held, If a brakeman on a train, knowing- such rule of the railroad company, also knowing that the nut on top. of the standard of the brake, used to hold the brake-wliool on, was off, but without putting it in proper condition himself, or. reporting it to the proper partios, uses it unnecessarily to chock the speed of the train, by which use the brake-wheel comes off, throwing him onto the track, whereby he is injured, such brakeman is guilty of contributory negligence, at least ; and in such case no recovery should be, had against the railroad company.</p> <p>2. New Trial.</p> <p>Where the verdict of a jury is wholly without evidence on a point essential to a flnding--or the evidence is plainly insufficient to warrant such finding by the jury, the same should be set aside, and a new trial awarded.</p>

I.&emdash;Bankruptcy proceedings notice to all persons and binds all parties.--2 Black on Judgments, § 807; Brown v. Smart, 09 Mel., 320; 14 Atl. It. 468 ; Merriman v. Sewall, 8 Gray, 310. II.&emdash;Cardinal rale is testator's indention.---Crcsapv. Crcsap, 34 W. Va., 310, and cases cited.

<p>cited 8 Am. & Eng. Enoy. L. 908, § 80; Lisli. Oont. § 689; Arch. Nini Prius, s. p. 50.</p>

I. — Are the demurrers to evidence formally drawn! — 1 Wash. 150; 5 Naud. 1; 2 Raud. 68; 4 Rand. 406; 1 Munf, 35 ; 1 Rob. Forms 121; 4 Min. Inst. 832; Hutch. Treat. 990. II. — Does the evidence show the right of action in each case barred f — Munf. Off. Bonds § 497; Busw. Lira. & Adv. Poss. § 214; -12 Ark. 730; 7 Wend. 504; 3 Eng.'79; 16 Mass. 456; 97 Pa. St. 47; 4 Pet. 172; 9 Mete. 564; 13 Am. & Eng. Ency. L. 722; 73 Cal. 574; 72 Ga. 83; 75 Va. 628.

<p>Same as points 1 and 2 of the syllabus in Adkins v. Fn/, supra, p. — (18 R. It. Rep. 787.)</p>

<p>1. Watiík-JRiohts.</p> <p>The grant of the water privileges below established mills will lie so construed as to preserve the water power of such mills undisturbed, unless a contrary intent plainly appears from a reasonable construction of the instrument conveying the grant.</p> <p>2. WatbR-Dioiits.</p> <p>The privilege of turning the wateisof a river down a canal does not carry with it the right to dam such waters back by head gates or otherwise, so as (o (destroy the water-power of mills aiready established.</p> <p>8. W A T15 ll-Rl 01VTS— D A 31A (IKK.</p> <p>If, to preserve himself from injury orloss, a person should deem it necessary to unlawfully damage the property of another, the law requires a just compensation to be paid for such damage.</p> <p>4. Watkr-1U(!hts-Dama<j eh — Jury.</p> <p>The jury are the judges of the compensation to be paid in case of wrongful damage to real property, and the court will not disturb their finding unless plainly unwarranted by the evidence.</p>

<p>1. CRIMINAD PROCEEDINGS — KliCORD.</p> <p>An issue to be determined by inspection of the record must, lie tried by the court, not by a jury.</p> <p>2. Criminad Proceedings-Arrest of Judgment — Kkcord.</p> <p>On motion in arrest of judgment,- the. judgment can not lie arrested except for errors apparent in the record.</p> <p>8. Criminad Proceedings — Grand Juror — Indictment.</p> <p>The iucompetency or disqualification of of a grand juror is no ground to abate or quash the indictment. Code, o. 157, ⅝ 12.</p> <p>4. Criminad Proceedings — Circuit Court — Mistakes.</p> <p>The Circuit Court lias control over all proceedings had during the same term, or in the office during tliepreceding vacation, ft may set aside any such proceedings, or correct any mistake therein, and make such order concerning the samo as may be just. >See Code, c. 125, ⅜ 00</p> <p>5. Criminad Proceedings — Sheriff—Process.</p> <p>The sheriff or his deputy will be permitted to amend his return of process, mesne or final, so as to make it conform to the facts,</p>

<p>cited 14 Ohio St. 372; 7 Ohio St. 317; 32 0. S. 96; 87 0.8. 665; 5 N. Y. 492; 18 N. Y. 432; 17 Wall. 559; 37 W. Va. 260, and a very recent case of B. 0. R. .R. Co. v. Baugh in U. 8. Court.</p> <p>I. — Rules of R. R. Co. as evidence. — 30 AV. Va. 798.</p> <p>II. — Fellow servant — -28 AV. Ya. 610; 36 W. Va. 397.</p> <p>III. — Evidence not 'prejudicial no cause for reversal. — 33 AV. Va. 30; 33 AV. Va. 71; 11 W. Va. 104; 21 AV. Va. 764; 31 AV. Va. 842; 26 AV. Va. 143.</p> <p>IV. — Contributory negligence. — 27 AV. Va. 47; 85 Va. 306; Beach Co n't. Neg. 42; 83 Ga. 67.</p> <p>V. — Damages.-—34 AV. Va. 260; Code, c. 103, s. 6; 13 S. E. Rep. 452; 76A'Ta. 137.</p> <p>VI. — Duty of R. R. Co. as to rules. — 124 N. Y. 493; 123 N. Y. 280; 126 N. Y. 544; 128 N. Y. 662. Court will not . invade province of jury. — 25 AV. Va. 570; 17 W. Va. 214; 21 AV. Va. 224; .26 AV. Va. 338; 21 AVI Va. 741.</p> <p>VII. — Exceptions not properly taken. — 31 AV. Va. 363; 14 AV. Va. 157; 26 AV. Va. 49; 26 AV. Va, 718; 16 AV. Va. 522; 81 W. Vr. 450; Code, c. 131, s. 9; 16 S.-E. Eep. 819; 17 S. E. Eep. 794.</p>

<p>1. TRUSTS AND TKUSTKJBS---INJUNCTION— PnEADIXU — AMENDMENT.</p> <p>A trust-creditor and the trustee to whom the property had been turned over by the trust-debtor to sell, file a bill of injunction to restrain a third party from wrongfully removing the trust-property out of the state, but do not pray for general relief. Held; If the plaintiffs desire any relief proper to bo given in the ease as made, other than that specifically prayed for, the bill must contain a prayer for general relief, but such a general prayer may be added by amendment or amended bill.</p> <p>2. Trusts and Trustees — Pleading—Amendments.</p> <p>In such case plaintiffs may, by amended bill or supplemental, as may be proper, allege new faets, and make new parties defendant, showing the necessity for taking accounts, and for the aid ot the court in safely and properly executing- his duties as trustee, adding a prayer for the taking of such "accounts, and for the aid of the court in administering the trust. Bold, such amendments are not improper, nor are they within the meaning of the rule which forbids the introduction of such new matter as constitutes in substance a new bill.</p> <p>3. Trusts and Trustees.</p> <p>Against a party defendant, who has wrongfully removed out of the state all or apart of the trust-property, the court may make such presumptions and draw- such inferences, as the case admits of, and treat such defendant as one who shall not profit, by such wrong.</p>

<p>1. ATTACHMENT — AFFIDAVIT.</p> <p>A case in which the law of attachment is discussed with reference to the affidavit, stating: (1) The nature of the plaintiff’s claim. (2) The amount of the claim at the least; that is, the amount duo after deducting all credits and proper counter-claims. (3) The amount the plaintiff is “justly” entitled to recover; that is, justly, not only in regard to the absent debtor, but justly in regard to other creditors and persons interested.</p> <p>2. Attachment — Aim davit.</p> <p>The supplemental affidavit allowed by the latter part of clause 8, ⅜ 1, c. 100. See Code (Ed. 1891.)</p> <p>3. Attachment — INTERVENER.</p> <p>A mere creditor at large of the absconding debtor is nota person interested in disputing plaintiff’s claim, within the meaning of the term as used in section 28, c. 106, Code.</p>

<p>1.LANDLORD AND TENANT — ESTOPPEL—LEASE.</p> <p>Tn an action by a landlord against bis tenant, whether the action be debt, assumpsit, covenant or unlawful detainer, where neither fraud or mistake is shown in the procurement of the lease, no proof of title is required by the landlord, for in such case the tenant is estopped from denying the title of his landlord.</p> <p>2.Landlord and Tenant — Rent.</p> <p>A tenant for years, who holds over after the expiration of his term, without paying rent or otherwise acknowledging a continuance of the tenancy, becomes either a trespasser or a tenant, at tlie option of tlie landlord.</p> <p>3. Landlord and Tenant.</p> <p>Where tlie landlord suffers the tenant to remain -in possession after the expiration of the original tenancy, the law presumes the holding to be upon the terms of the original demise.</p> <p>4. Landlord and Tenant — Adverse Possession.</p> <p>The fact that during the tenancy the title of the landlord has been forfeited for the non-payment of taxes on the land in controversy constitutes no valid defence to an action of unlawful de-tainer, brought to dispossess the tenant, as the plaintiff is entitled to be placod in statu quo, unless, perhaps, the tenant has made a distinct disclaimer, and-lias been holding adversely for more than three years, or can sustain some other valid defence.</p> <p>5.Verdict.</p> <p>This Court can not interfere with the verdict of a jury under such circumstances that we are not able to say that, by excluding all the parol evidence of the exceptor in conflict with that of the plaintiff, the verdict was not warranted by the evidence.</p>

I. — Decree should he recorded for want of necessary parties.— 11 W. Va. 427; 14 W. Va. 22; 15 W. Va. 190; 16 W. Va. 794; 21 W. Va. 2; Id. 124; 28 W. Va. 195; 33 W. Va. 155.

<p>1 Mistakes — Clerk of Court — YVkit of Enquiry.</p> <p>Where the clerk improperly enters an order for a writ of inquiry in au action for debt at rules, the court may correct the mistake or disregard the same and enter judgment as though no such order had been entered.</p> <p>2. Varianoe — Abatement—Judgment.</p> <p>An amendable variance between the writ and declaration can only he taken advantage of by plea in abatement, and not on motion to correct the judgment after it has become final,</p> <p>,‘í. JUDGMENT — PRESUMPTION—KlIROR—RECORD.</p> <p>A judgment will be presumed to be right-, unless error affinna-tivolyappears on the face of the record.</p> <p>4. Judgment — Reooiid.</p> <p>It is not necessary to make the facts proven, nor the evidence, a x>art of the record, in ease of a judgment by default.</p> <p>5. Judgment — Record—Evidence.</p> <p>Tf any part of the evidence is referred to in the xu'eamble to the judgment, this, of itself, is insufficient to x>roelude the fact that other evidence might have been heard by the court, unless it affirmatively appear from the record that this was all the evidence heard by the court.</p>

<p>The same briefs were riled in this ease as in the preceding-case, which see for citations of authorities.</p>

I. — By what rules the validity of the sale and, conveyance must be tested. — 26 Gratt. 517 ; 26 AM. Ya. 80. II. — No jurisdiction of the subject-matter. — 3 Pom. Eq. Jur. §§ 1311-1314 and note; 15 S. E. Rep. 997; 14 AM. Va. 322; 30 AM. Ya. 555 ; 14 Am. Eng. Ency. Law. 393, and cases cited; Code, c. 58, s. 46; 27 N. E. Rep. 1110; 16 S. E. Rep. 159. No jurisdiction of the person. — Code, c. 125, 8.13; 26 W. Ya. 31; 15 S. E. Rep. 173.

<p>1. Declaration — Pleading—Negligence.</p> <p>A declaration for negligence ⅛ good, if it contains the substantial elements of a cause of action, the duty violated, the breach thereof properly averred with such matters as are necessary, to render the cause of action intelligible, so that judgment according to law and the very right of the case can be given.</p> <p>2. Evidence.</p> <p>An ex parte map or diagram made by a witness and shown by him to be correct may be given in evidence for the consideration of the jury, not as independent evidence, but to be considered by them in connection with other evidence, so as to enable them to understand and apply it.</p> <p>3. Objection — Pkactioe.</p> <p>To make an objection iuade (luring the trial to the admission of evidence available in the appellate court, the point must be made and properly saved by bill of exceptions. It is not enough to note the objection in the certificate of evidence.</p> <p>4. Damages — Railroad Company.</p> <p>As a general rulo, a railroad company is not responsible for the negligent- acts of United States postal clerks or agents upon its trains.</p> <p>5. Damages — Railroad Company.</p> <p>; A railroad company has a platform and mail crane near a post-office at which the mail train does not stop, but the postal clerk from the mail car, with a “catcher,” takes in from the crane the mail pouch suspended thereon, without the train slacking speed. A person who stations himself on the company’s land, near the mail crane, for the purpose of witnessing the catch, or for some other purpose of like kind, as a mere voluntary licensee is subject to the concomitant risks and danger of injury thus assumed, and the company does not owe him the duty of keeping the mail crane in suitable and safe condition. The railroad company is only liable for such wanton injury as may bod one to such licensee by the gross negligence of the company, its agents and servants.</p> <p>6. Waiver — Exception.</p> <p>A defendant who, after the plaintiil has given in his evidence in chief and rests, moves the court to instruct the jury to render a verdict for defendant, but, the motion being overruled, goes on with his case, will be held to have waived his exception taken to such ruling of the court.</p> <p>7. Roads.</p> <p>The road-surveyor may change any county-road in his precinct with the consent of the owner of the laud (Code, ⅜ 21, c. 43) and, when any road is altered, the former road shall be discontinued to the extent of such alteration, and no further, and the new one established (section 32, c. 43).</p> <p>8. New Trial.</p> <p>When the verdict of a jury, viewed according to the ordinary rules of considering the evidence on motion for a new trial, is plainly against the law of the case upon the facts proved, the court, on motion of the party aggrieved, will set the same aside and award a new trial; but not more than two new trials can be granted to the same party in the same cause.</p> <p>9. A case in which the foregoing rules are applied, and various instructions and rulings are considered and discussed.</p>

<p>1. EXCEPTIONS — PRACTICE.</p> <p>When a plaintiff in equity flies exceptions to an answer, tbe exceptions should be noted as filed, and at once be set down for argument.</p> <p>2. Exceptions — Reversal op Decree.</p> <p>Tf the exceptions to the answer are not well founded, it is not ground to reverse a decree that they were not set down to be argued, but the cause was heard and decided without passing J' upon them.</p> <p>3 Exceptions.</p> <p>When a replication to the answer is entered or filed, the excop-tions to the answer are treated as abandoned, and the answer deemed sufficient as to any discovery prayed for.”'</p> <p>4. Usury — Evidence.</p> <p>Evidence of lending, at a usurious rate of interest, to other persons, is not competent to prove a usurious rate in the case on trial.</p> <p>5. COMMISSIONERS IN CHANCERY — PRESUMPTION.</p> <p>Every presumption is made in favor of the correctness of the decision of the commissioner in chancery. If the testimony is conflicting, the court rarely interferes with his finding on the facts, provided ho makes no error of law affecting the result.</p> <p>G. Usury — Discovery—Deed oe Trust — Injunction—Sade.</p> <p>Any borrower of money may exhibit his bill in equity against the lender, and compel a discovery on oath of the money really lent, and the interest or consideration of the same; and, if a deed of trust has been made to secure the payment of the debt, an injunction may be awarded to prevent a sale thereunder during the pendency of the suit.</p> <p>7. Trusts and Trustees.</p> <p>It is the duty of the trustee to look to the rights and interests of the trust-debtor, as well as to those of the trust-creditor, in-as-muoli as lie is the agent of both parties, and bound to act impartially, between them.</p> <p>8. Trusts and Trustees — Sade.</p> <p>Where there is, from any cause, an impediment to his making a fair and proper sale, (1) as where, from the fact of the deed of trust being one of long standing, or from any cause, the amount due and to be raised by a sale is uncertain; (2) where there are various deeds of trust or other incumbrances; (8) where the legal title is outstanding; (4) where there is a cloud upon the title— the trustee may, of his own motion, apply to a court of equity to remove such impediment to a proper execution of the trust; and, if ho should fail to do this, the party injured by his default has a right to make such application.</p> <p>9. Trusts and Trustees.</p> <p>When the court has for any purpose properly taken j urisdiction - of such case, it should proceed to have the trusts executed under its direction, and with its sanction, when the interests and rights of any party manifestly require it.</p>

<p>cited 9 W. Ya. 522; 16 W. Ya. 355 ; Code, c. 105, s. 17; 28 W. Ya. 820 ; Code, c. 141, s. 2; 1st Bouvier (15th Edition) page 605, title, “Estate.”</p> <p>cited Const. Art. XIII, § 5; Acts of 1872-3, ch. 134; Acts of 1882, ch. 95, § 13 and 14; Code of 1887, c. 105, s. 13 and 14; Acts of 1891, ch. 94, § 16; 24 W. Ya. 561; Id. 583; 27 W. Ya. 652; Acts of 1869, ch. 125, § 7; Acts of 1872-3, ch. 117, § 39; Code of 1891, c. 81, s.,39; Acts of 1879, ch. 73, § 10; Code, c. 29, s. 10; 17 B. E. Rep. 318.</p>

<p>1. Mechanic's I jen — Public Buildings.</p> <p>The public buildings of a county are wholly exempt from the operation of the mechanic's lion law and can not be sold under execution or other process.</p> <p>2. County Court.</p> <p>The County Court of a county can not be compelled by a bill in chancery to issue an order against the county-funds, for any debt or claim, just or unjust, against the county. The statutory law furnishes the remedy in all such eases, and it must be strictly pursued.</p>

<p>cited 15 W Va. 628; 6 W. Va. 508 ; 26 W. Va. 845 ; Code, c. 54, s. 61; 126 Pa. 293.</p>

<p>1. ATTACHMENT — AFFIDAVIT—CONSTRUCTION OF STATUTE.</p> <p>Section 1, c. 10(3, of tlie Code among other things prescribes, that the affidavit made for the purpose of having an order of attachment shall state the nature of the plaintiff’s claim and the amount at the least, which the affiant believes the plaintiff is justly entitled to recover. Held, the term “justly” is not superfluous or insignificant, but is a material qualification of the rest of the phrase, “entitled to recover,” and it or its equivalent must be used, in order to constitute a substantial compliance with the statute.</p>

<p>1. Suhooi^-Tíutbtkkk —Tkaciikrb—CoNStiiuotion of Statute.</p> <p>Under section 13, <*. 45, of the Code, as it stood in the edition of 1887, school-trustees had no power as individuals to appoint teachers. Such trustees could only appoint at a meeting of which all the trustees luid notice, and at least two of the trustees must concur in the appointment. The appointment must bo in writing.</p>

I. — Injury does not constitute prima facie presumption of negligence. There must be proof of negligence in addition to •proof of the injury. — 25 W. Va. 571; 27 Vt. G43; 16 Ill. 451; 30 111.198; 40 la. 33; 14 Ind. 30; 50 Miss. 572; 26 Tex. 604; 42 Miss. 603; 35 Midi. 507; 33 Mo. 309; 4 Joños L. 432; 62 Mo. 562 ; 8 Nev. Ill; 7 Am. & Bug. It. II. Gas. 588; 7 Am. & Eng. II. R. Gas. 590; 13 Am. & Eng. II. II, Gas. 534.

error CitO(l Code, c. 42, s. 17; Id. c. 52, s. 14; 9 W. Va. 648; Id. (3(31; 18 WT. Va. 1; 34 \V. Va. 2(30; Td. error. 1.&emdash;-The record .shows that the. jurors were freeholders.-9 W. Va. Ü48; 30 \V. Va. 203.' IT- The rerdiet was not excessice, and., under such circumstan- ces, the action of the trial court compelling the defendant in error to take a smaller amount in glace of a new trial, will not be disturbed.-18 W. Va. 1; 34 W. Va.

<p>cited 12 Gratt 576 ;</p>

<p>1. Officer- — Bond—Sureties.</p> <p>P. was duly appointed a constable of Jackson county, and, in pursuance of an order of the Comity Court of said county, directing that he should not transact any business as such constable until he should lile liis bond as such constable in the penalty of live thousand dollars, conditioned according to law, to be approv-eel by the clerk of said court, ho executed a bond conditioned according to law in the penalty aforesaid, with two sureties, who with him, acknowledged said bond before said clerk, and left it for record, and ho thereupon took the oath of office, and entered upon his duties as constable. In a suit upon such bond against P. and his sureties for failure to pay over money collected by him as such constable said sureties are not relieved from liability for the default of their principal by reason of the fact that said bond was not approved by the County Court.</p> <p>2. Offiuiír- — Bond—Sureties.</p> <p>The failure of an officer to obtain an approval of his official bond as roquirecl by statute does not affect his liability or that of ins sureties, if it was otherwise legally executed and delivered.</p> <p>;i. Officer Bosrn — .Sureties.</p> <p>The approval of an official bond by the court is not intended to increase or decrease (he liability of the officer and his sureties, but is intended for the protection and indemnity of the public against any default which may occur in his official acts.</p>

<p>1. Tiujsts and Trustees — Fraudulent Conveyances -Husband AND WIFE.</p> <p>Whore during the pendency of a suit against an insolvent husband, instituted for the purpose of obtaining a judgment on a note executed by him, said husband executes a deed of trust on his real estate to a trustee, to secure to his wife the payment of a sum of money which he claims she had loaned to him, which he had used in his business, and which sum was barred by the statute of limitations when said trust was executed, and amounted to nearly .the value of the real estate, such trust-deed can not, as a lien, take precedence over judgments obtained by the bona fide creditors of said husband on debts created before said trust- was executed, on the unsupported testimony of the husband and wife as to it-⅝ validity.</p> <p>2. Husband and Wife — Gift—JjOan—Tresumction—Evidenok</p> <p>Where money belonging to the wife as her separate estate is delivered to her husband, and used by him in his business, the law presumes it was intended as a gift, and not as a loan; and, in order to constitute such delivery a loan as against the husband, the wife must prove an express promise of the husband to repay, or establish by the circumstances that it was a loan, and not a gift.</p> <p>3. Husband and Wife--Gift— Loan--Presumption — Evidence. Where the facts and circumstances tend to show that a gift was intended, and that the husband used and dealt witli the property as his own, the mere parol testimony of the husband and wife, of aprivato understanding between themselves that the transac-action was by them considered or intended as a loan to the husband by the wife, and not a gift, will not, as.against the creditors of an insolvent husband, rebut the presumption of a gift.</p> <p>4. COMMISSIONJlUlS IN CHANCERY-NOTION.</p> <p>Tn taking an account the commissioner may take the depositions of witnesses to enable him to act upon the subject, under his general notice, and a special notice is not necessary.</p> <p>5. Trusts and Trustees-Statute oe Limitations-Husband-WIee.</p> <p>If, at the date of said deed of trust, the claim thereby sought to be secured is barred by the statute ofliniitations, that fact lias a strong tendency to defeat said trust-deed as a lien in favor of the wife against tmna jicle creditors of her husband.'</p>